Terms and Conditions for Duke’s Purchase of Goods and Services
Unless otherwise agreed to by the Duke Manufacturing Co. (“Duke”) in writing, the Purchase Order will be filled by the party identified as “Vendor” in the Purchase Order (the “Vendor”) in accordance with the following terms and conditions at no higher prices than as shown in the Purchase Order.
Unless otherwise authorized in writing by Duke, Vendor shall not fabricate further in advance of time required than necessary to permit shipment on delivery date. Duke shall have the right from time to time by written notice(s) to make changes in quantities and/or delivery dates of any good(s), material(s), or service(s) covered by the Purchase Order prior to the time the good(s) are actually placed in final production by the Vendor. If such changes are made after the good(s), material(s), or service(s) are placed in final production by the Vendor and such changes cause a material increase or decrease in Vendor’s cost or in the time for performance of the Purchase Order, equitable adjustment in the price and time for performance will be made and the Purchase Order will be modified in writing accordingly, provided that any claim for adjustment must be asserted by the Vendor within a reasonable time (in no case to exceed twenty days) after the change is ordered.
Vendor warrants all goods on the Purchase Order to be free from defects of material and workmanship for a period beginning at the delivery of such goods to Duke, and ending at the earlier of twelve (12) months from the date that Duke’s product incorporating such goods is installed or eighteen (18) months from the date Duke delivers its product incorporating such goods to Duke’s customer.
Vendor further warrants all goods and services covered by the Purchase Order will conform to applicable drawings, specifications, or samples, will be merchantable and of good material, and will be suitable for the use intended. All articles will be subject to Duke’s inspection and rejection at place of delivery. Defective articles may, at Duke’s discretion, be returned to the Vendor for full credit or replacement at Vendor’s expense, including transportation charges both ways, but no defective articles shall be replaced without formal replacement order signed by Duke. If defective articles have already been incorporated into Duke’s product and installed in the field, Vendor shall indemnify Duke for the costs incurred by Duke in repairing or replacing the defective articles in the field, and Duke’s cost in prosecuting or defending any claims arising from such circumstances, including attorney’s fees incurred by Duke in defending itself against any such claims or attorney’s fees incurred by Duke in enforcing this provision against Vendor.
All invoices, packages, packing slips and bills of lading shall include the following: the purchase order number, Duke’s part number (if applicable), Vendor’s product number, quantity, weight, unit price and extended price. Each delivery shall include a packing slip. All charges for packing, carting, and crating are included in the purchase price herein and no extra charges shall be allowed therefor. Invoices shall, unless otherwise specified herein, be accompanied with Bill of Lading or express receipts. Vendor shall give Duke notice of shipment within 24 hours of shipment thereof.
Vendor guarantees that the sale or use of its goods will not infringe any patents, and covenants that it will, at its own expense, defend every suit or action which shall be brought against the Duke or those offering for sale, selling, manufacturing, importing, or using any product of Duke’s, for any alleged infringement or claim of infringement of any patent by reason of the offer for sale, sale, manufacture, importation, or use of said Vendor’s goods, and Vendor agrees that it will pay all costs, damages, expenses, counsel fees, and such other charges as may be sustained by Duke as a result of any such infringement. Articles manufactured in accordance with Duke’s design are not considered as the Vendor’s goods under the terms of this paragraph.
If Vendor shall fail or refuse to proceed with the Purchase Order, or if Vendor shall fail to make delivery, according to the delivery schedule, Duke may cancel the then remaining balance of the Purchase Order unless the delay is an excusable delay. The term “excusable delay” means any delay beyond the reasonable control of the Vendor. An excusable delay shall not constitute default hereunder. The Vendor shall promptly notify Duke of any such delay and the cause thereof.
Vendor shall not assign or transfer the Purchase Order without the written consent of Duke.
As a condition of the issuance of the Purchase Order and in consideration for the price included therein, Vendor agrees to protect and return, upon Duke’s request, all tools, drawings and other design or manufacturing information furnished to Vendor by Duke and Vendor will not disclose such information to others or use such information for any purpose whatsoever other than for the fulfillment of the Purchase Order and any subsequent purchase orders from Duke.
Tools – Unless otherwise agreed in writing, all patterns, molds, tools, or dies ordered are property of Duke and are to be maintained by Vendor in good working order, and are to be used only on Duke products, and are to be delivered to Duke in good working condition immediately upon written demand by Duke upon completion of any orders requiring the use of said tools.
The Vendor certifies that the goods to be furnished under the Purchase Order will be provided in compliance with the provisions of the Fair Labor Standards Act of 1938 as amended and the Occupational Safety and Health Act of 1970, and the standards and regulations issued thereunder and all other applicable federal, state, and local laws, regulations, rules and ordinances. Further, Vendor certifies that all goods furnished and all work performed hereunder will comply with said laws, standards, and regulations. Vendor further agrees to indemnify and hold harmless Duke for any loss, damage, fine, penalty, or any expense whatsoever as a result of Vendor’s failure to comply with the above and any standards or regulations issued thereunder, including attorneys’ fees incurred by Duke in defending third party claims or enforcing these terms against Vendor.
For the purposes of any contract for purchase arising out of a Duke Purchase Order, an event of “force majeure” shall mean any strike, work stoppage or other labor difficulty, fire, flood, earthquake, explosion, epidemic, pandemic, war, invasion, hostilities, terrorist acts, riots, strikes, embargoes or industrial disturbances or other acts of God or public enemy, or acts of government or any subdivision or agency thereof, which are beyond the control of the party claiming the occurrence of a force majeure event and which delays, interrupts or prevents such party from performing its obligations under this contract. The party affected by a force majeure event shall give notice thereof to the other party promptly following (but in no event more than 20 days after) the occurrence thereof and shall apprise the other party of the probable extent to which the affected party will be unable to perform or will be delayed in performing its obligations hereunder. The affected party shall exercise due diligence to eliminate or remedy the force majeure cause and shall give the other party prompt notice when that has been accomplished. Notwithstanding the foregoing, within five (5) days following Vendor’s declaration of a force majeure event which prevents its full and/or timely delivery of the goods hereunder, Duke may at its option and without liability (a) require Vendor to apportion among its customers the goods available for delivery during the force majeure period; (b) cancel any or all delayed or reduced deliveries; or (c) cancel any outstanding deliveries hereunder and terminate the contract. After cessation of a force majeure event declared by Vendor, Vendor shall, at Duke’s sole option, be obligated to deliver goods not delivered during the force majeure period. After cessation of a force majeure event declared by Duke, neither party shall be obligated to deliver or purchase goods not so delivered and purchased during the force majeure period and Duke shall in its sole discretion determine whether to cancel any affected Purchase Orders or reduce any future purchase obligations in such affected Purchase Orders.
